state Delegates confer in the final session of the 2nd meeting of the un intergovernmental working group/victor barro

The last day of the second session of the IGWG on Transnational Corporations and other Business Enterprises started with a final panel on access to remedy, and then moved into the process of adopting the report of the session in the afternoon.

While often just a mere formality in such UN proceedings, the exchanges among states concerning the adoption of the draft meeting report was in a temporary state of high diplomatic tension.

Russia proposed to accept the draft report ‘ad referendum’, meaning on condition that there 14 days be set aside where states and others can provide input to the Chair of the meeting, who then in turn updates the report, finalises the text and report on it to the Human Rights Council in March.

While agreeing that the report be adopted, ad referendum, South Africa proposed an important qualification (contained in brackets in the following quote) to draft recommendation A (c) which stated that “the Chairperson-Rapporteur be entrusted with the preparation of a new programme of work [and a draft negotiating text for the commencement of the negotiations for the proposed legally binding instrument] based on the first and second session of the” IGWG “and to present this text before the third session…for consideration”. In what might seem bizarre in current international politics, Russia and EU were in alignment on their rebuttal to South Africa, as they suggested that third operative paragraph of the original resolution establishing the IGWG already gave the mandate to the Chair of the IGWG to “prepare elements for the draft legally binding instrument for substantive negotiations” at the third IGWG meeting in 2017.

In an attempt to mediate a compromise, Russia called for a 5 minute pause in proceedings for interested states to convene a discussion after which a proposal will be made to the Chair, which was agreed. After recommencing the debate, the Chair suggested that the draft report include reference to the purpose of the third session to particularly focus on “operative paragraph number 3” of the resolution establishing the IGWG. The nature of the discussion reflects the urgency with which South Africa wants the treaty process to proceed, and on the other side some reticence from states in support of the UNGPs implementation, but it can only hoped that the quick resolution to the impasse today portends well for the inevitably challenging debates that will come during the third session of the IGWG. There was certainly a quiet feeling of accomplishment among diplomats in Room XX after proceedings finished.

Earlier in the day access to remedy was the main theme of the discussions, and it had already been touched upon throughout but the panellists added additional themes to the discussion including the difficulties of establishing judicial remedies without separation of powers at the national level, and a prevailing lack of trust in national level courts. Mexico discussed this point by asking whether non-judicial human rights mechanisms could be a way to ensure access to remedy for affected people. One panellist in response though, Claudia Müller-Hoff from European Center for Constitutional and Human Rights, noted how these can generally be most effective as complementary to judicial mechanisms. She nonetheless recognised the fact that they may be more accessible, especially given the practical difficulties in reaching international mechanisms.

Namibia and Ethiopia were concerned by the lack of resources at the domestic level, especially in terms of technological skills for the gathering of evidence. Panellists, and later on civil society, highlighted the need to shift the burden of proof in order to attain justice.

Bolivia supported a view expressed by a panellist that the treaty consider justice for actions that damage the environment, arguing that too many resources were dedicated to clean up of damage caused by transnational corporations when they could be dedicated to fulfilling the right to development through the strengthening of public services and infrastructure. The importance of including the right to development in the future treaty was also mentioned by civil society, notably CETIM and the Legal Resource Centre.

Civil society organisations mentioned several issues that are key to them, including abolishing the corporate veil that separates parent companies within transnational corporations from the liability for acts committed by their subsidiaries. It was suggested instead that the treaty recognise transnational corporations as one corporate group, so that parent corporations can be held accountable for any acts by corporation in the group that commits human rights abuses.

Beth Sephens, Professor at Rutgers-Camden Law School raised the possibility of the treaty containing a committee that can handle complaints, suspecting that the establishment of an international civil or criminal court might take too long to set up.

The United Nations Working Group on Business and Human Rights took the floor to inform the IGWG that the issue of access to remedy was high on their agenda and would be the subject of their report to the UN General Assembly next year. They also encouraged stakeholders to issue communications to them in relation to this matter.

Once all proceeding of this second session of the IGWG were complemented the Chair-Person Rapporteur closed the proceedings with a quote from Martin Luther King Jr.: “Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

Two meetings were held on the fourth and penultimate day of this second session of the IGWG on Transnational Corporations and Other Business Enterprises (TNCs-OBEs), the first one on defining the scope of the future Treaty, and the second one on prevention, remedy, accountability and access to justice.

During the first half of the day, the Working Group discussed the scope of the future Treaty in relation, firstly, to the types of corporate actors who will be subject to the new Treaty, and secondly, to the scope of the rights that need to be included in the legally binding instrument. Little debate focussed on the second question, other than a handful of comments from the panellists supporting the need for the treaty to address the full range of human rights, which wasn’t brought into question by any state.

The debate on whether or not the Treaty should apply to TNCs or to all business enterprises had echoes of the discussion on this issue from last year, although there were more views shared by states. South Africa stated that it would be a “travesty of justice” if the treaty equated national companies with transnational corporations due to the latter’s ability to evade justice by shifting jurisdictions at will, and the gap in international law remains the application of international human rights law to the operations of transnational corporations. Other states that implicitly or explicitly supported the application of the treaty to transnational corporations included Venezuela, Pakistan, Indonesia and Cuba. Brazil and Bolivia both mentioned the challenge of defining transnational corporations, as did Russia by presenting the view that the design of uniform standards on TNCs would be extremely difficult as no real definition of TNCs exists. The delegation of Ecuador (in their individual capacity rather than acting as Chair) noted interestingly that the resolution that established the Intergovernmental Working Group provides clear guidance because it relates to ‘transnational corporations and other business enterprises’. Whether or not this is a tacit alignment with the EU’s demand on Monday for the process to cover all corporations is not entirely clear, but the dynamics are certainly shifting for states in this discussion. For its part, as opposed to last year, the European Union was present throughout, but stayed silent on this subject, although they made their views clear on Monday that the treaty should cover all corporations.

There was a plurality of views from civil society on this issue also. CETIM and ESCR-Net both agreed that the priority for the treaty should be governance over transnational corporations, although the latter argued that to exclude national corporations might generate a perverse incentive for transnational corporations to arrange themselves in a way that would avoid coverage by the treaty, and leave a gap in the international legal framework. CETIM echoed the views of some states that the treaty should solely focus on transnational corporations because national and state-owned businesses are already subject to domestic law.

On the question of the definition of transnational corporations being a challenge to developing a treaty due to the challenge with defining them, this point was challenged by panellists Khalil Hamdani from Lahore School of Economics in Pakistan and Carlos Correa from the South Centre. In his presentation, referred to various other instruments on transnational corporations, including the UNGPs and the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, which have not needed to develop a precise definition of transnational corporations.

The afternoon meeting focused on ways forward to implement the UN Guiding Principles (UNGPs) and their relation to the elaboration of the binding instruments. Lene Wendland, Adviser on Business and Human Rights, at the Office of the High Commissioner for Human Rights (OHCHR) presented the OHCHR Accountability and Remedy Project, which aims “to enhance the effectiveness of domestic legal systems in providing accountability and remedy in cases of business-related human rights abuses.” The EU took the floor to reiterate the importance of rooting the Treaty in the context of alignment with the UNGPs. Mexico, after echoing the views of the EU on UNGPs implementation, stressed the importance of finding consensus on the nature of transnational corporations’ responsibilities before negotiating the content of the treaty. Nonetheless, a common theme of the debate throughout the afternoon, expressed by panellists, states and civil society representatives that implementation is not the only issue surrounding the UNGPs, but it was noted that they lack proper means of ensuring access to remedy, and the legally binding instrument would complement the UNGPs with additional protection measures.

One panellist, Carlos Lopez of the International Commission of Jurists, also insisted on the importance of cooperation between states and expressed that the future Treaty provides a real opportunity for a legal framework in relation to mutual legal assistance and judicial cooperation. He added that the legally binding instrument could be inspired by the UN Convention against Corruption, which establishes obligations on inter-state cooperation, and the Optional Protocol to the Convention on the Rights of Child addressing the sale of children, which establishes the liability of legal persons.

The third day of the IGWG on Transnational Corporations and Other Business Enterprises (TNC-OBEs) continued on the theme of obligations, this time focusing on the responsibilities of TNCs and OBEs with respect to human rights. Today’s session focused on existing international instruments addressing the obligations of private actors, as well as on approaches to clarify standards of liability of TNC-OBEs.

Ms Kromjong, Secretary General of the International Organization of Employers (IOE) opened the discussion by listing some existing regulatory instruments, including the ILO and OECD standards and the United Nations Guiding Principles (UNGP).

Her main argument was based on the idea that, fundamentally, governments hold the ultimate responsibility to respect and implement international human rights law, leaving aside any question of the responsibilities of companies by adding that the TNC-OBEs could support the efforts of governments in implementing international human rights standards but were not duty-bearers, a view backed by the IOE. This argument was challenged by Ecuador who argued that non-state actors are indeed covered by international human rights standards including the UDHR, among other international law instruments.

In the interventions from civil society, the collective view of over 60 ESCR-Net members was present on this issue, which referred to national constitutions in several countries, as well as Africa’s 2014 regional instrument, that recognises the legal responsibilities, and in some cases criminal liability, of non-state actors to respect human rights. Panellist Nomonde Nyembe, Attorney in Business and Human Rights, also recognised the power of constitutions to ensure that TNC-OBEs are responsible for their human rights.

Additionally, Mr Surya Deva, Associate Professor in Law at the City University of Hong Kong brought the room’s attention to the fact the UNGPs have a principle expressing that all business enterprises have an independent responsibility to respect human rights.

Latin American States have been particularly present in today’s discussion, while India has remained silent, although the State was noted for being one of the only countries in the world to have a corporate social responsibility ombudsman. Today, the focus shifted away from Brazil, after a lot of attention earlier in the week, on the domestic situation but was addressed in part during a side session of Brazilian NGOs that the Brazil delegation attended.
Uruguay underlined the lack of human rights content within the OECD Guidelines for Multinational Enterprises, thereby emphasising the need for the elaboration of an international Treaty more inclusive of human rights semantics.

Cuba and Bolivia suggested that a monitoring mechanism should be set up to ensure the implementation of the future Treaty and provide access to remedy. This was also supported by civil society representatives, including ESCR-Net who stated: “the treaty should establish a complementary international system of accountability to support the effective operation of national and regional systems.”

Duty of care deriving from UK law was seen by Richard Meeran as an important aspect to include in the Treaty, while Michelle Harrison highlighted the need for a provision to eliminate “foreign non-convenience” and not to include a statute of limitation, a view which was backed by Bolivia. Michael Congiu, mentioned the need for resources dedicated to training and capacity-building for TNCs to comply with human rights standards.

National Contact Points (NCPs) proceedings for the implementation of the OECD Guidelines were considered to be insufficient by civil society and experts on the panel, in discordance with the IOE, who emphasised on the importance for the Treaty not to undermine the OECD Guidelines and the UNGPs.

Day two of the second meeting of the open-ended intergovernmental working
group (IGWG) on transnational corporations and other business enterprises
(TNC-OBEs) with respect to human rights proved electric, yet collaborative.

The morning downpour failed to dampen the spirits of civil society, while
panellists fired shots in Panel II on primary obligations of states. After
first hearing from non-governmental organisations (NGOs) who were unable to
speak yesterday, the discussions turned to state obligations with respect to
TNC-OBEs.

Daniel Aguirre of the International Commission of Jurists highlighted the
innumerable obstacles faced in terms of human rights protections in Myanmar.
He spoke of the recently enacted investment law that failed to follow due
process, and the domestic lacuna of human rights protection.

A communal sharp intake of breath from the back rows of Room XX was audible
when Ariel Meyerstein of the US Council for International Business asserted
that investor-state dispute settlement (ISDS) is a form of human rights
protection  a statement which was later countered by Ana María Suárez
Franco.

Ana María Suárez Franco of FIAN International explained the relevance of the
Maastricht Principles on Extraterritorial Obligations of States in the Area
of Economic, Social and Cultural Rights
for elaborating the
extra-territorial obligations (ETOs) of states in the binding instrument.
She pointed out that the UNGPs are ambiguous regarding ETOs and that this is
an important gap that the binding instrument should fill.

Juan Hernandez-Zubizarreta of the University of the Basque Country
highlighted the need to regulate the localisation and de-localisation of
companies. He argued that the human rights system must be used to level the
playing field in terms of competitive advantage, otherwise rights violations
such as child labour will be permitted to persist.

In the afternoon, Panel II continued to cover important ground through the
topic of jurisprudential and practical approaches to elements of
extraterritoriality and national sovereignty.

David Bilchitz of the University of Johannesburg posed the question of what
happens if in a situation of corporate human rights abuse, a state fails to
implement a legal framework to protect its citizens, and so the corporation
is left to act without accountability. He argued that corporations must have
human rights obligations imposed directly on them.

Harris Gleckmann of the University of Massachusetts considered different
systems for affected peoples (including national and subnational legal
systems, interveners such as ombudsmen, home country responsibilities via
extra-territorial obligations, and an international court dealing with
corporate human rights abuses). He asserted that it is an illusion that
states can exercise control over TNCs as, inevitably, key documents and
assets lie outside the jurisdiction of the state, making the notion of full
control a fallacy.

Kinda Mohamedieh of the South Centre looked deeper into the concept of ETOs,
arguing that factors such as the location of assets help establish a link
between a state and a corporate entity. She contended that using such
factors to address the nationality of an actor under a future binding
instrument will be necessary for establishing jurisdiction of home states to
ensure their corporations comply with human rights standards when
functioning abroad.

Leah Margulies of Corporate Accountability shared insights from the creation
of the Framework Convention on Tobacco Control, showing the need for data to
support the treaty provisions which demonstrates the costs of human rights
abuses by TNCs which are born by the governments themselves. She drew on
article 5(3) of the Framework, explaining the need to avoid conflict of
interests.

Gianni Tognoni of the Peoples Tribunal contended that there is a shared
conception among states and TNCs crimes linked to the economy are not
perceived to be crimes under international law. He also considered the
challenges of remedies, and explained that the right to a decent salary is
linked to the right to life.

Fortunately no states have walked out of the second IGWG so far, and
differences are being tabled and worked through. The absence of countries
such as Canada, the United States of America, Australia and New Zealand is,
however, to be noted.

The second day of the Intergovernmental Working Group consisted of a panel on Primary obligations of States. The main theme discussed was on extraterritorial obligations in relation to TNCs and other Business Enterprises (OBEs).

Panellist Ana Maria Suárez from FIAN International emphasised on the importance of taking into account the Maastricht Principles when elaborating the binding Treaty. The Principles are not themselves human rights legal standards, but they can provide some guidance when considering incorporating extraterritorial obligations into the Treaty.

Another important issue was raised by Juan Hernández-Zubizarreta who underlined the normative inequality between the rights and the obligations of TNCs and OBEs. He highlighted that their rights are protected through the contracts they sign with states, while their responsibilities are only guided by soft code of conducts and self-monitoring.

Mr Meyerstein from the US Council for International Business caused discord when he claimed that ISDS was a form of Human Rights protection. The delegation of Bolivia and Mrs Suárez openly disagreed with such statement, as did civil society representatives. Indonesian Focal Point stated: “ISDS only protect the interests of investors.”

The representative of the US Council clarified later that individual investors, if they were individual human beings (called “natural persons”) might be able to make a claim before an ISDS mechanism. However, Dominic Renfrey, representative of ECSR-Net stated: “This ignores the fact that ISDS is exclusively used by corporate entities (known as 'legal persons') to defend their economic priorities, and companies do not have human rights.”

It could be argued that ISDS mechanisms in fact further protect the rights of individual investors, rather than the rights of victims of human rights violations perpetrated by TNCs and OBEs; this echoes the normative inequality raised by Mr Hernández-Zubizarreta.

In the evening meeting, one of the highlights was in relation to limiting competition between states with regards to investments and investors. Article 5.3 of The Framework Convention on Tobacco Control was mentioned by (…) as a possible provision for the future Treaty to avoid conflict of interest between company representatives influencing state policies and legislations in favour of corporate interest.

Mr Tognoni, Secretary General of the Permanent Peoples’ Tribunal said that preventive measures should be included in all trade or investment agreements to avoid potential violations of human rights.

The important message to be retained from today’s meetings is perhaps that currently, companies’ reponsibilities are monitored by soft mechanisms. States who have interests in hosting such companies, fail to efficiently implement human rights standards and legislation that would effectively protect victims rather than favour TNCs and OBEs, especially when it involves extraterritorial activities.

“Neo-liberalistas”, as Ethiopia called private stakeholders, should not have their rights and interests put above those of victims of abuses by TNCs/OBEs

Closing the day, in the final contribution from the panel, David Bilschitz called on the IGWG to remember the foundation of human rights and that the UDHR calls for all organs of society to respect human rights, and that includes all actors with the ability to abuse human rights, including corporations.

He added, in defence of the idea for a robust international mechanism to implement the Treaty, that sometimes extraterritorial jurisdiction fails without a complementary international system to ensure accountability and remedy for affected people.

The second session of the Open-ended Intergovernmental Working Group on Transnational Corporations and other Business Enterprises opened on 24 October 2016 at the UN in Geneva. The Working Group was established in 2014 by Human Rights Council Resolution 26/9 with the mandate to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”
Her Excellency Mrs Maria Fernanda Espinosa Garcés, Ecuadorian Ambassador, was re-elected as Chair and, in contrast with last year’s session, the opening meeting and the adoption of the Programme of Work ran smoothly, without apparent controversies.

The European Union, who in July 2015 tried to impose conditions to expand the mandate of discussion on the scope of the Working Group, effectively threatening viability of the first session, welcomed this year’s programme. However, by emphasising that a treaty most not undermine implementation of the UN Guiding Principles on Business and Human Rights, EU engagement seems predicated on an intention to widen the potential scope of the future instrument to include national businesses, not only those with a transnational characteristic. Although the EU is still adopting a conservative position, their willingness to participate in the discussions was widely commended by states in the Working Group.

A significant development in the morning occurred during the first intervention of the Brazilian delegation. Upon speaking the vast majority of civil society representatives left the negotiating room for several minutes to protest the recent change of power in Brazil, considered by many Brazilian civil society representatives here to be a “political coup”.

The South African NGO the Legal Resources Centre (LRC) provided a submission
for the second IGWG meeting on 24-28 October 2016 focusing on:

The need to include the right to development as recognised in
the African Charter on Human and Peoples' Rights as a core principle of the
binding instrument on transnational corporations and other business
enterprises with respect to human rights ("Treaty").

Participation by affected communities in the Treaty
development process in accordance with the right to development.

The LRC made the following specific recommendations to IGWG:

The human right to development, as contained in the African Charter on
Human and Peoples' Rights ("African Charter") and as given content by the
African Commission on Human and Peoples' Rights ("African Commission"), must
be included as a founding principle and right in the Treaty, and expressly
apply to all peoples.

The Treaty must require the free, prior and informed consent of affected
communities as an ongoing requirement for development projects in the full
meaning of the right, that is, both procedural and substantive. This
includes the protection of peoples' right to full and timely disclosure of
all relevant information prior to the approval of the project, of local
decision making processes and the right to say no to a project.

The Treaty should expressly recognise customary land and natural resource
rights of affected communities as ownership rights, whether documented or
not, and provide for appropriate compensation and reparation where
applicable.

Communities from around the globe who are, or might be, adversely
affected by corporate activity must be at the centre of the development of
the Treaty, including all associated discussions and negotiations.

From 24th of October the Human Rights Council will discuss for the second time the historic treaty that could hold transnational corporations and other business enterprises to account for corporate abuses under international human rights law. The UN treaty could protect people from human rights abuses by corporations and bring corporate actors to justice.

Unfortunately the European Union and its Member States aren’t so keen and have so far been boycotting the negotiations.

Help bring justice to victims of corporate abuse, and uphold the rights of ordinary people. Tell the European Commission that we need a binding treaty on business and human rights!

Sign the petition to President Juncker here: https://you.wemove.eu/campaigns/stop-corporate-abuse

As members of the Treaty Alliance, a global movement working towards the Treaty, in May CIDSE, Friends of the Earth Europe, SOMO and Bread for the World co-organised a legal seminar to discuss options for enforcement mechanisms for the Treaty linked to access to justice. The seminar brought together academics, NGOs, and members of grassroots organizations reporting cases of human rights violations by corporations in different continents. It also included an exchange with representatives of the EU institutions.

During the seminar, stories were shared about human right abuses and the legal and practical barriers to access to justice encountered in different countries. The case reported by Elisabet Pèriz from Tierra Digna, a study centre for social justice based in Colombia, exposed the Hydroelectrical Dam Project El Quimbo, constructed and exploited by ENGESA, a Colombian subsidiary of Enel (Italian multinational manufacturer and distributor of electricity and gas). Likewise, Chima Williams, Head of Legal Resources of the Environmental Rights Action of Friends of the Earth Nigeria, illustrated two cases against Shell; one about gas flaring and the second over oil spills into farmlands and fishponds in Southern Nigeria.

These cases exemplified the challenges of transnational litigation and showed the inability of host states to enforce judgments, as well as the reluctance of home states to impose responsibility on parent corporations when, legally, this responsibility is expected to be shared by both, parents and subsidiaries. A UN Treaty could mean a major advancement in regulating extraterritorial obligations by establishing universal jurisdiction.

On behalf of IBFAN, Mike Brady, Campaigns Coordinator at Baby Milk
Action/IBFAN UK, took part in a panel discussion on /Challenges and
Opportunities of a Treaty Addressing Corporate Abuses of Human Rights/on
November 18, 2015. This event was jointly organized by ESCR-Net, Al-Haq,
FIDH, Franciscans International and IBFAN-GIFA.

In front of a full room, Mike Brady first emphasized the need to put
health before business interests and shed light on the consultation
process, rather than negotiation with the business sector, which led to
the adoption of the International Code of Marketing of Breastmilk
Substitutes in 1981.

He then showed that, despite its integration in the human rights
framework through the Convention on the Rights of the Child, the Code is
still widely violated by baby food companies because of a lack of
implementation and enforcement at national level. Indeed, States that
host baby food companies may be reluctant to put their corporations at a
competitive disadvantage by taking more robust action than other
countries. It stresses the need for an international mechanism that will
help create a level playing field.

Mike Brady shared IBFAN’s 35-year long experience of working with
voluntary mechanisms such as the Global Compact or the OECD Guidelines
for Multinational Enterprises which have ultimately failed in
holding corporations accountable for their Code violations.

Therefore, when people say the UN Global Compact and OECD Guidelines
make a binding treaty unnecessary, IBFAN disagrees. On the contrary,
IBFAN believes that international binding norms are necessary to hold
corporations fully accountable for their human rights violations,
including for their violations of the Code.

On November 23, IBFAN-GIFA took part in a panel discussion organized by
the Right Livelihood Award Foundation on the issue of/Working towards an
enabling environment for the promotion and protection of the rights to
water, land and food – Linking Global Advocacy with Local Action/. The
other panelists were Maude Barlow, Canadian activist, former Senior
Advisor on Water to the 63rd President of the UN General Assenbly and
Chairperson of the Council of Canadians, and Jumanda Gakelebone,
spokesperson of the First People of the Kalahari, a grassroots
organization representing the Bushmen of Botswana.

IBFAN, Maude Barlow and the First People of the Kalahari are all
laureates of the Right Livelihood Award, known as the Alternative Nobel
Prize. Other laureates, namely Swami Agnivesh and Hans Herren/Biovision
Foundation, were also attending the event as honour guests.

Maude Barlow first took the floor and shed light on the struggles
encountered in her advocacy for human rights and the environment,
pointing out free trade agreements and the investor-state dispute
settlement (ISDS) mechanisms that they enshrine as main obstacles to the
realization of human rights. She emphasized that the power of
corporations to use ISDS mechanisms could strongly undermine any
agreement on climate change if corporations decide to fight the
necessary resulting regulatory changes. Therefore, she insisted on the
need to include a reliable and clear ISDS carve-out in any future
agreement in order to safeguard it against risks of ISDS lawsuits
targeting climate change action by governments.

Jumanda Gakelebone then spoke about his struggle for the First People of
the Kalahari that face discrimination and forced eviction of their
lands. They do not have access to natural resources on their ancestral
territories and a woman even died of thirst following the cut-off of
water by the government. Hunting is also prohibited to indigenous people
on their ancestral lands, while permits are delivered to private
companies that sell them to wealthy tourists wanting to display a
trophy. Jumanda Gakelebone then highlighted the dangers to which human
rights activists from the community are exposed and the double discourse
of the Botswana government which adheres to human rights instruments and
declarations while it at the same time violates systematically the
rights of indigenous people. Finally, Jumanda Gakelebone shared its
concerns about the lack of human rights protection of indigenous people,
leading to depletion of their natural resources by private companies
that are allowed to operate in the country with impunity.

Speaking on behalf of IBFAN, Camille Selleger insisted on
the indivisibility, strong interconnectedness and interdependence of
human rights. She recalled States obligations to promote, protect and
support breastfeeding in order to ensure the realization of child’s
right to health child, noting that child’s right to health is also
closely correlated with people’s access to safe drinking water and land.
Therefore, the struggles for the right to land, the right to water and
the right to an enabling environment for breastfeeding should not be
seen as separate struggles. Indeed, all these rights are included in the
concept of food sovereignty, which is a condition for the full
realization of the right to adequate food. Camille Selleger then
outlined IBFAN’s 35-year long experience that voluntary initiatives such
as the Global Compact or the OECD Guidelines do not work in getting
corporations accountable for their human rights violations and
empahsized the need for a binding treaty to put an end to corporate
impunity. She ended her speech calling all activists in the room to join
the Treaty Alliance, a group of organizations, social movements and
individuals advocating in support of elaboration process of a treaty on
transnational corporations and other business enterprises with respect
to human rights.

At the end of the panel discussion, Swami Agnivesh and Hans Herren also
shared their considerations about the need for promotion and protection
of human rights.

Swami Agnivesh highlighted the need for human rights to include the very
spiritual, sacred nature of humans and their environment, including
land, air, water and animals. He called for a renewed commitment of the
international community to put this sacred nature of humans and the
environment above all laws and conventions as the fundamental principle
that should lead any international process and development initiative.
He invited all people to join hands beyond the dogmatism of any ideology
or religion in order to thrive collectively. He finally called the
participants to collaborate with his organization Sarva Dharma Samvaad
which advocates for equal respect for all religions in the perspective
of optimal human development.

Hans Herren stated that human rights are indeed crucial but that most
governments do not fulfil their obligations in this regard. He denounced
the current trend of governments to initiate public-private partnerships
with businesses instead of taking measures to ensure the full
realization of human rights. He also stressed the role that each
individual should consciously play when it comes to electing
representatives or consuming products. He finally noted that Sustainable
Development Goals represent a great opportunity for human development
and called all partners in the room to support them.

A new report on palm oil land grabs in Nigeria by Asia’s leading
agribusiness group exposes the need for a binding treaty to regulate
corporate human rights abuses globally, says Friends of the Earth
International.

Global palm oil trader Wilmar International Ltd. (WLIL.SI) has come
under scrutiny for a large-scale land acquisition in Cross River State,
Nigeria where it destroyed areas of High Conservation Value, including
community food-producing areas and water sources essential to local
communities, according to a report released today. [1]

The new report, Exploitation and empty promises: Wilmar’s Nigerian
landgrab, uses first-person testimonies, satellite maps, and Wilmar’s
own filings with the Roundtable on Sustainable Palm Oil to demonstrate
that the company failed to gain the Free, Prior and Informed Consent of
communities directly affected by its operations; failed to produce
adequate Environmental and Social Impact Assessments; and failed to live
up to promises of infrastructure development and benefit sharing,
despite these promises being a primary incentive for local communities
to allow the company to operate in Cross River State.

"It is a disgrace that Wilmar is painting a picture to its financiers
and buyers that they have improved their operations, when the reality on
the ground shows that they are still bulldozing away people's lives,”
said Godwin Ojo, Executive Director of Environmental Rights Action in
Nigeria. “Wilmar should address these evictions and human rights
violations or pack and go."

Friends of the Earth International and other activists from the
Campaign to Dismantle Corporate Power and the Treaty Alliance, a growing
global alliance of civil society groups, are campaigning for a legally
binding international treaty to prevent and remedy corporate human
rights abuses during a UN gathering in Geneva. [2]

The treaty is supported by many diverse governments including those of
Ecuador, South Africa, Indonesia, India, China as well as the Vatican
and by more than 800 organisations, including the UN Human Rights
Council.

Existing voluntary guidelines on business and human rights do not
provide access to justice and remedy for victims of corporate abuse,
according to Friends of the Earth International, which advocates for a
legally binding system to put human rights above the corporate
privileges.

“Voluntary codes of conduct like Wilmar’s simply do not hold sufficient
weight to solve problems of the company’s own making. The company’s
failure to respect human rights in Nigeria is yet another example that
transnational corporations like Wilmar cannot be trusted to police
themselves,” said Anne van Schaik, Sustainable Finance Campaigner with
Friends of the Earth Europe.

The report cites academic and community-based research showing that
Wilmar’s Nigerian operations may displace subsistence food production by
thousands of local farmers.

“Wilmar’s Nigerian landgrab is a prime example of how leading palm oil
producers – even those like Wilmar that are in the global spotlight –
exploit vulnerable communities and failures in governance to grab land
to fuel their profits,” said Jeff Conant, Senior International Forests
campaigner with Friends of the Earth-US.

FOR MORE INFORMATION

Godwin Ojo, executive director of Friends of the Earth Nigeria /
Environmental Rights Action (and member of the executive committee of
Friends of the Earth International): + 234 813 520 8465 or
gloryline2000@yahoo.co.uk

On the occasion of the official EU/CELAC Heads of States Summit (10-11 June) which brings together 61 Heads of States from the European Union and Latin America and the Caribbean, CIDSE joined several civil society organizations and social movement from both continents who came together during the "Days of Mobilization" (8-10 June) to reclaim sovereignty against corporate-led trade and to discuss possible alternatives.

While European and Latin-American presidents were discussing migration, climate change and possible new Free Trade Agreements (FTA) between both regions, civil society organisations gathered to discuss alternatives to the neoliberal agenda and more specifically how an internationally binding treaty on transnational companies (TNC) could ensure that States effectively protects Human Rights, but also that companies are made legally responsible to respect them. For cases of Human Rights violation, a binding treaty could also help to ensure that victims have an access to remedy.

The Days of Mobilization started on Monday 8th June with a public debate together with representatives of Trade Unions; representatives of NGOs working on the relations between the EU and Latin America; some Members of the European Parliament and the Head of the Ecuador Permanent Mission to the UN in Geneva. For CIDSE and other Brussels based networks working on Latin America, it was the opportunity to launch a short animated videohttps://www.youtube.com/watch?v=5-kkwHpCe-A which explains how a trade relationship - mainly based on the extraction of raw materials - is contributing to depletion of non-renewable natural resources, global warming and social conflicts.

Link to the video : https://www.youtube.com/watch?v=5-kkwHpCe-A

On the second day, the participants had to divide into two parallel sessions. One was dedicated to "Reclaiming Peoples Sovereignty for Access to Justice" and the other to "New generation of Free Trade Agreements and its impacts in Latin America and Europe". In this session, participants widely recognized that the benefits of FTAs between EU and Latin America are increasingly ending up in the hands of a small group of privileged people instead of serving the common good. In the session dedicated to "Peoples Access to Justice", the audience had the chance to listen to several testimonies highlighting the complicity of TNCs and corrupted States in many Human Rights abuses and environmental crimes. The Brazilian organization MAB (Movimento dos Atingidos por Barragens - Movement of People Affected by Dams), partner of several CIDSE members, explained how the government's < green energy > policy is affecting several indigenous communities still living in voluntary isolation from the western world. The session continued with civil society movements explaining what kind of alternatives they have been experimenting. MAB told the public about when they brought the case in front of the Permanent Peoples Tribunal in Madrid and how this helped raise awareness within the Brazilian society on the impacts of so called "green energy".

The third and last day of the Days of Mobilization was also the opening for the official EU/CELAC summit when all Heads of States gathered in Brussels and, as usual during official EU summits, the city was drowned in the roar of the helicopters in charge of the security. For civil society members, the day started with a session on the UN transnational corporations Treaty as a new potential avenue for justice. During the opening session, panellist highlighted the worldwide asymmetrical judicial system. While some communities have been reclaiming justice for years, a growing number of TNCs are using the Investor-state dispute settlement (ISDS) to sue developing countries for lost benefits due to social and environmental laws. Panellists also recalled that though some countries have ratified the convention 169 of the International Labour Organisation (ILO), many governments don't respect this convention that provides indigenous population the right to a free prior and informed consent before the start of any kind of project that might affect their way of life. On the contrary, States too often collude with private sector interests at the detriment of affected communities, and the examples abound:

In Guatemala, the opening of the Marlin mine was accompanied by the militarisation of the province. Local communities are now more divided and violence against women has increased. Many feel cheated because the jobs promised by the companies are inexistent while the land and the water is polluted.

In Ecuador, the 22 year long legal case against Chevron-Texaco for the massive oil spill in the Amazon still have not been resolved, partly because of obstacles concerning jurisdiction and international legal cooperation between Ecuador and the United States. An international binding Treaty on TNCs could help the victims to access justice.

In South Africa, the government is accused of complicity in the massacre of mining workers who declared strike to reclaim higher wages and better working conditions in 2012.

In Honduras, Human Right defenders who reclaim access to the land of their ancestors are criminalized and extra judicial killings are legion.

In Mozambique, Vale, a Brazilian Mining TNC, is extracting coal at the expenses of local population who no longer can access arable land and clean water.

The cases above are just a few named in the room but they are enough to highlight the urgent need for a binding treaty to control the impacts of TNCs. Participants highlighted that individual countries often don't have the legal instruments to address the issue of crimes with extraterritorial dimensions. Many governments around the world might be complicit in this situation but those who would like to act miss the legislative tools to enforce their will.

The abundance of examples needs to be more visible in order to enhance the pressure on governments from the EU and Latin America to join the first session of the UN Human Rights Council open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The closing activity of the Days of Mobilization was an "Impunity Tour in the EU Quarter in Brussels" during which Civil Society Members from both continents could walk around in the world's second largest lobby city (Washington DC being the first city in the world in terms of lobby presence). It was again the opportunity to expose the financial, political and judicial power of multinational corporations.